Torts I Negligence Flashcards
Duty Rule
Duty is a legally recognized relationship between the parties. As a general rule, when a party acts it creates a duty of care owed to all foreseeable plaintiffs to act as a reasonably prudent person under the circumstances.
Under the Cardozo approach to duty, a duty is owed to all foreseeable plaintiffs in the “zone of danger”; the Andrews approach provides that one acting affirmatively owes a duty to all.
Learned Hand Test
Can be used to establish breach.
Under the modern version of the Hand Test, the likelihood of harm and the gravity of harm are weighed against the defendant’s burden of prevention and the utility of the defendant’s conduct. If they outweigh the defendant’s burden of prevention and the social utility of defendant’s conduct, then it shows that the defendant breached its duty to the plaintiff.
B<PL
P (probability of harmful event) = foreseeability
L (gravity of injury) = how much harm can the event cause?
B (burden of precautions) = how much will prevention cost or how inconvenient is it?
Bottom line: increased foreseeability and/or increased potential harm increases responsibility to act unless they are so costly or inconvenient that they outweigh the combination of the foreseeability and degree of harm
Unreasonable Conduct to Establish Breach
A duty is breached when the defendant fails to act as a reasonable and prudent person in fulfillment of that duty. Whether a party has breached a duty depends on whether they acted as a “reasonably prudent” person would under the circumstances.
The Hand Test can be used to determine whether the defendant behaved reasonably.
Negligence Rule
There must be a duty, breach, actual cause, proximate cause, and damages.
Breach Special Duty Rule
Did the defendant possess increased knowledge or skills (professional negligence)? Was their conduct reasonable within that trade or profession? Specialists held to even higher standard.
Were they engaged in an activity that requires a higher duty of care? Such as bus driver, or when safeguarding the safety of the public.
Common carriers, innkeepers, and public utilities have higher duty of care than public.
Three Ways to Establish Breach
There are three ways to establish breach of duty: Negligence per se, Unreasonable conduct by the defendant, or Res Ipsa loquitur.
Negligence per se
Under negligence per se, a defendant’s violation of a statute may establish that a defendant has breached a duty of care.
There are three requirements: The plaintiff must be within the class of persons the statute was intended to protect; and the injury or harm was of the type the statute was designed to protect against; and the defendant’s violation of the statute was not excused.
Res Ipsa Loquitur
Res ipsa loquitor may be used to prove negligent behavior (which constitutes the duty and breach elements) based on surrounding circumstances.This rebuttable presumption allows a jury to infer, based on circumstantial evidence surrounding an injury,that negligence has occurred.
The elements of res ipsa loquitor are (1) the harm suffered would not ordinarily have occurred without negligence of someone; (2) it is more likely that it was defendant’s negligence (or defendant had exclusive control of object which caused the harm); and (3) the plaintiff was not at fault.
Actual Cause (factual cause)
Actors are liable for negligent behavior if their negligence factually causes harm. If there is but one cause of the plaintiff’s injury apply the “but for” test. If there’s more than one cause, apply the “substantial factor” test.
“But for” Test
Negligence factually causes harm if it is the “but for” cause of the harm; that is, if the harm would not have happened without the negligent act.
“Substantial factor” Test
The substantial factor test establishes that the plaintiff need only prove that the defendant’s act was a substantial or material factor which caused the plaintiff’s injury.
Respondeat Superior
It holds that an employer will be vicariously liable for the actions of an employee that are within the course and scope of the employment.
Joint and Several Liability
Joint tortfeasors are individuals who combine to cause an injury to the plaintiff, either independently or in concert. “Joint liability” means that all of the tortfeasors are liable for the injury, and “several” liability means that each tortfeasor is individually liable for the full amount of the injury suffered. So, if there are three joint tortfeasors, and they are sued jointly, any award to the plaintiff will be apportioned among them. However, if one of the tortfeasors is sued severally, that tortfeasor would be solely responsible for any award to the plaintiff.
Proximate Cause (legal cause)
An actor’s negligence must also be the proximate cause of harm before liability will attach. An act proximately causes harm if it is the direct cause of that harm, or if the harm is a foreseeable result of the negligent act.
Proximate causation examines whether the causal chain from the action/inaction of the defendant to the harm suffered by the plaintiff was broken by an unforeseeable plaintiff, unforeseeable type of injury, unforeseeable manner of injury, or unforeseeable intervening event, whether the harm suffered by the plaintiff was within the scope of the risk created by the defendant’s action/inaction, or whether the connection between the defendant’s action/inaction and the harm suffered by the plaintiff is too remote.
Under the Cardozo approach to duty, a duty is owed to all foreseeable plaintiffs in the “zone of danger”; the Andrews approach provides that one acting affirmatively owes a duty to all.
Superseding Cause
A ‘superseding cause’ is an intervening force or act that is deemed sufficient to prevent liability for an actor whose tortious conduct was a factual cause of harm.”
